Filed 9/25/96

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEOFFREY MENSAH-SOWAH,
Plaintiff-Appellant,
v.
BRIDGESTONE/FIRESTONE, INC.,
d/b/a Dayton Tire,

No. 95-6380
(D.C. No. CIV-95-543-C)
(W.D. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District
Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation.

**

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Geoffrey Mensah-Sowah appeals the district courts
grant of summary judgment in favor of defendant on his employment
discrimination claim, brought pursuant to Title VII of the Civil Rights Act,
42 U.S.C. 2000e-5(f). Because plaintiff failed to raise a triable issue as to
whether he was treated less favorably than his white and/or non-African
counterparts, we affirm.
Plaintiff, a naturalized citizen from Ghana, was employed by Dayton Tire
from 1984 to August 1993. In June 1993, plaintiff was granted a leave of absence
from July 19, 1993 to July 25, 1993, which, when combined with a week-long
plant shutdown, gave him two weeks to return to Ghana to be with his daughter
for a kidney operation. Based on plaintiffs history of failing to return at the end
of his leaves of absence, plaintiff was specifically advised to allow enough time
to insure you will be here as scheduled on 7/26/93 and that there will be no
extension of this request and any deviation will only hinder your chances of being
approved in the future. R. I, doc. 15, attachment A, ex. 2. On July 26, 1993,
plaintiff allegedly called the plant and advised a security guard that he would not
return until August 8, 1993. He did not, however, speak to anyone about

-2-

extending his leave of absence. Upon his return, plaintiff informed the company
that his brother had died and that his daughters surgery had been postponed.
Plaintiff was notified that he was being terminated, initially for violating
the seven-day no report policy. After an investigation, the company accepted
that plaintiff may have called the plant on July 26, and changed its reason for
terminating plaintiff to his failure to comply with the companys explicit directive
that he return to work on July 26. Although the company alleges that this
decision was made after requesting proof from plaintiffs union representative
that plaintiff actually intended to return on July 26, such as an itinerary, ticket, or
travel agent information, plaintiff alleges that he first heard of the request the day
before his arbitration hearing. Plaintiff has been unable to produce such
evidence. In March 1994, plaintiffs grievance was arbitrated and decided in
favor of the company.
After exhausting his remedies, plaintiff filed this discrimination action in
the United States District Court for the Western District of Oklahoma. The
district court granted summary judgment in the companys favor, finding that
plaintiff did not present a prima facie case of employment discrimination or show
that the companys stated reasons for its decisions were pretextual. This appeal
followed.

-3-

We review a grant of summary judgment de novo, applying the same

standards as those used by the district court. Universal Money Ctrs., Inc. v.
American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115 S. Ct.
655 (1994). Summary judgment is appropriate if there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of
law. Fed. R. Civ. P. 56(c). A factual dispute is material if it might affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In race discrimination cases, we apply the three-part burden shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
its progeny. See Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995).
Under this analysis, the plaintiff must first establish a prima facie case of
discrimination. Id. The burden then shifts to the defendant to articulate a facially
nondiscriminatory reason for its employment decision. Id. at 530. Upon such a
showing, the presumption of discrimination established by the prima facie
showing simply drops out of the picture. St. Marys Honor Ctr. v. Hicks, 509
U.S. 502, 510-11 (1993). The plaintiff then carries the full burden of showing
that defendant discriminated on the basis of race, either by providing direct
evidence of discrimination, or by showing that the employers proffered reasons
are pretextual. Elmore, 58 F.3d at 530.

-4-

To establish a prima facie case, plaintiff was required to show that he was a
member of a protected class; was discharged for violating a work rule; and that
similarly situated nonminority employees had been treated differently. Id. at 52930. Although plaintiff met the first two prongs, he did not submit any evidence
that white and/or non-African employees, with a history of leave infractions, have
been treated more favorably upon failing to return to work when ordered to do so.
Plaintiff has not identified any specific person who was treated differently under
similar circumstances, stating only that the union would have to provide such
information, R. I, doc 15, attachment C, pp. 70-76; and that he had no knowledge
about other employees or the circumstances surrounding their terminations, id.,
doc. 21, deposition at p. 98. This failure to identify specific evidence of disparate
treatment is fatal to plaintiffs lawsuit. See Lowe v. Angelos Italian Foods, Inc.,
87 F.3d 1170, 1175 (10th Cir. 1996)(affirming summary judgment based on
plaintiffs failure to establish prima facie case of disparate treatment; no evidence
that similarly situated males were treated differently). In light of the lack of
evidence demonstrating disparate treatment, any factual dispute regarding
plaintiffs intent to return on July 26 is not material to this lawsuit, and will not
preclude entry of summary judgment. Anderson, 477 U.S. at 248.

-5-

The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber

District Judge

-6-